Keywords
Summary

Keywords

Obligations of the Member States - Failure to fulfil an obligation - Proceedings under Article 88 CS - Purpose - Obtaining a change in behaviour on the part of the recalcitrant State - Commission decision establishing a failure which has already exhausted its effects - Irregularity

(Art. 88 CS)

Summary

$$The purpose of the Article 88 CS procedure is to bring about a change in behaviour on the part of the recalcitrant State, and not to record in abstracto that a failure existed in the past. That interpretation also follows from the wording of the second sentence of the first paragraph and the first sentence of the third paragraph of that provision, which expressly provide that the Member State in question must fulfil its obligation.

Where, on the date on which the Commission initiated the procedure, the failure to fulfil obligations which was alleged by the Commission had exhausted all its effects, with the result that the Member State in question was no longer able to take effective action to put an end to that failure even if it had wished to, the Commission's decision establishing that failure must be regarded as not taken in accordance with the purpose of Article 88 CS and, therefore, flawed in that the essential purpose of the procedure under that article could not objectively be achieved at any stage of the procedure.

( see paras 24, 26-27, 31 )